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Anthony Enriquez, Esq. Elizabeth Jordan, Esq. The Door, Legal Services Center
121 Avenue of the Americas, 3rd Floor NON-DETAINED New York, New York 10013 (212) 941-9090, ext. 3426 [email protected]
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT NEW YORK, NEW YORK
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In the Matter of
[CLIENT] [A number]
In removal proceedings.
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Immigration Judge: XX Individual Hearing: XX
MOTION TO TERMINATE REMOVAL PROCEEDINGS PURSUANT TO INVALID AGENCY ACTION
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UNITED STATES DEPARTMENT OF JUSTICE Executive Office for Immigration Review
United States Immigration Court New York, New York
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In the Matter of
[Client] [A number]
In removal proceedings.
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MEMORANDUM OF LAW IN SUPPORT OF MOTION TO TERMINATE REMOVAL PROCEEDIGNS PURSUANT TO INVALID AGENCY ACTION
Statement of Facts ....................................................................................................................................... 4
Argument ..................................................................................................................................................... 7
I. THE REMOVAL PROCEEDING AGAINST [CLIENT] SHOULD BE TERMINATED BECAUSE IMMIGRATION AUTHORITIES VIOLATED THEIR OWN REGULATIONS DURING HIS DETENTION. ........................................................................... 7
A. Termination Is Appropriate When Immigration Authorities Violate Their Own Regulations. ............................................................................................................................................... 7
B. Immigration Officials Violated Several of Their Own Regulations During [client]’s Detention. ................................................................................................................................. ............................................................................................................................................... 8
1. Custody of Unaccompanied Immigrant Children is Governed by the TVPRA, Code of Federal Regulations, and the Flores Settlement. .................................................................... 8
2. Immigration Officials Violated [client]’s Rights Under the INA, CFR, and Flores Settlement. ................................................................................................................................ ............................................................................................................................................. 10
i. Violations of the INA ........................................................................................................... 10
ii. Violations of 8 CFR 1236.3 ................................................................................................. 11
iii. Violations of the Flores Settlement ...................................................................................... 12
C. The Government’s Treatment of [client] Violated His Fundamental Rights and Shocks the Conscience. ...................................................................................................................................... 13
1. The Government’s Treatment of [client] Violated his Fundamental Rights. ....................... 13
2. The Government’s Treatment of [client] Shocks the Conscience. ....................................... 15
i. [client] Was Treated Disrespectfully and His Dignity Was Violated By Agents’ Shocking Conduct. ............................................................................................................................ 15
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ii.Agents Shockingly Disregarded The Particular Vulnerability of the Minor. ............................. 16
1. Agents Subjected the Vulnerable [client] to the Adverse Impact of Solitary Confinement. ..... 16
2. Agents Ignored [client]’s Vulnerabilities to Victimization in Adult Detention. ........................ 18
3. Agents Ignored [client]’s General Vulnerability to Trauma as an Adolescent. ......................... 18
D. The Government’s Treatment of [client] Prejudiced Him. ..................................................... 20
1. The Government Violated Procedural Frameworks, so Prejudice is Presumed. .................. 20
2. The Government’s Conduct Actually Prejudiced [client]. ................................................... 22
II. TERMINATION OF [CLIENT]’S REMOVAL PROCEEDINGS STRIKES AN APPROPRIATE BALANCE BETWEEN PROTECTING THE RIGHTS OF IMMIGRANT CHILDREN, DETERRING GOVERNMENT MISCONDUCT, AND ENABLING REASONABLY EFFICIENT LAW ENFORCEMENT. ................................................................................................... 23
Conclusion ................................................................................................................................................. 24
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Statement of Facts [client] is a 19-year-old Honduran who stands just 5’5” tall and weighs 115 lbs. Affidavit
of [client] at ¶ 2, attached as Exhibit A. He endured an arduous trip to the United States in April
2013, when he was just 17, to escape a terrible life at home, one in which he experienced abuse,
deprivation, and indifference rising to the level of severe neglect at the hands of both of his parents.
Id. at ¶¶ 3-5. Unfortunately, [client]’s life did not improve as he dreamed it would when he arrived
at the United States border.
[client] was apprehended by immigration officials on April 24, 2013, near McAllen, TX.
He had traveled for twelve days from Honduras. Id. at ¶ 8. [Client] had the foresight to bring a
copy of his birth certificate with him when he set out on his journey. He had no other form of
identification, and he tripped and fell on the banks of the Rio Grande, soaking and ruining his birth
certificate. Id. at ¶ 9. At the immigration detention center where [client] was taken, he reported to
the first Border Patrol agent he spoke with that he was 17 years of age. Id. at ¶ 12. Despite
instructions to the contrary, see Form I-770, attached as Exhibit B, the agent did not act upon
[client]’s reasonable claim that he was a minor by providing him with the forms, such as a notice
of rights, and procedural safeguards, such as a telephone call, that minors detained by immigration
officials are required to receive. 8 CFR § 1236.3 (g)-(h). Instead, the agent informed [client] that
he did not believe him. [Client] Affidavit at ¶ 13. When [client] suggested to the agent that he call
and confirm [client]’s age with his family in Honduras, the agent refused. Id.
Although [client] was briefly detained with other children in a cold cell with a cement floor
and only four mattresses, he spent the next eight days alone in cells filled with adult men. [Client]
Affidavit at ¶¶ 14; 31. [Client] was transferred from adult cell to adult cell in the detention center
in Texas. Id. at ¶ 16. After a cursory interview with an agent who had already prepared and printed
paperwork for adult detainees, [client] was informed that he should sign for voluntary departure if
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he wanted to return home. Id. at ¶¶ 16-17. When [client] informed the agent that she had the
incorrect year printed for his birth date—making him 18, not 17, years old—she told him that
everything would be delayed if she had to reprint everything. Id. at 16. Feeling confused and
pressured, [client] signed the paperwork. Id.
Having signed for deportation, [client] then was wound through a further maze of cells in
the detention center in Texas, culminating in a shower with no privacy in a cell full of adult men.
Id. at ¶ 19. Late at night, [client] and those in the cell with him were told that they would be
returning to their countries. [Client] was shackled up: a belly chain around his waist attached to
handcuffs around his wrists, and a chain between ankle cuffs. Id. at ¶ 20. [Client], who had never
been arrested or incarcerated before, felt like a career criminal. Id. at 21. [Client] and the other
adults were loaded onto an airplane but were not told where the plane was going.
When daylight broke towards the end of the flight, [client] could see a major metropolis
below him. Id. at 22. When he got off the plane, [client] did not know where he was, but he was
taken to what felt like a jail. Id. at ¶ 23. Documents served on [client] by officials during his stay
at this second facility indicate that he was in Elizabeth, New Jersey, and that he did not receive
legally mandated paperwork until eight days after he was detained. See Exhibits B and C.
At the facility, [client] was told he was to await his deportation, which would take place in
five days. Id. at ¶ 25. [Client] was held in a cell with 11 other Hondurans, all adults. Id. at ¶ 23. He
shared his predicament with the others: he was a minor, but he was afraid if he told authorities
that, as he had previously, they would detain him until he turned 18 years old, which was two
months away. Id. at ¶ 24. Frightened and confused, [client] began to experience acute chest pains.
Id. at ¶ 26. Meanwhile, [client]’s cellmates told him that, as a minor, he could be released to family
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in the U.S. Id. [client] wrote a letter to ICE, informing the agency – again—of his birth date. He
also wrote a letter requesting medical attention. Id. at ¶ 26.
[Client] saw a doctor a few hours after writing his letter. At the end of the exam, [client]
told the doctor that he was 17 years old. The doctor said that [client] should not be detained with
adults and indicated that she would speak with agents right away. Id. at ¶ 26. [Client] was returned
to his cell.
In the middle of the night, an agent came to [client]’s cell, and he was taken to the agent’s
office. The agent asked for [client]’s family’s phone number in Honduras. Four other agents came
into the office and stood around [client] while the phone call was being made, which made [client]
feel very nervous. Id. at ¶ 27. In spite of the late hour, [client]’s brother answered the agent’s call
and confirmed that [client] was 17 years old. Id.
Upon determining that [client] was a minor, agents moved him through three different
solitary confinement cells. Id. at ¶ 28. One cell was so small that [client] could not move around
and he was reduced to tears. He had seen people who were fighting be placed in that cell as
punishment. Id. Subsequent to solitary confinement, [client] was fingerprinted and processed for
release at the detention center. When he was brought to the fingerprinting area, [client] was
shackled to the chair. Id. at ¶ 29. [Client] was finally released to a children’s shelter eight days
after he was first detained. Id. at ¶ 31.
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Argument
I. THE REMOVAL PROCEEDING AGAINST [CLIENT] SHOULD BE TERMINATED BECAUSE IMMIGRATION AUTHORITIES VIOLATED THEIR OWN REGULATIONS DURING HIS DETENTION.
When immigration authorities violate their own regulations, removal proceedings should
be terminated if that violation caused either a “deprivation of fundamental rights,” “conscience-
shocking conduct,” or prejudice that may affect the rights of the respondent or the fundamental
fairness of his proceeding. Rajah v. Mukasey, 544 F.3d 427, 447 (2d Cir. 2008). See also Accardi
v. Shaughnessy, 347 U.S. 260 (1954) (vacating a deportation order because the procedure leading
to the order did not conform to the relevant regulations). In this case, Customs and Border Patrol
(CBP) and Immigration and Customs Enforcement (ICE) violated several of their own regulations
while holding [client] in their custody, depriving [client] of his fundamental rights, shocking the
conscience by their treatment of [client], and prejudicing [client]’s rights and ability to defend
himself in his removal proceedings. As a result, this Court should grant his motion to terminate
removal proceedings.
A. Termination Is Appropriate When Immigration Authorities Violate Their Own Regulations.
It is well established that “when a regulation is promulgated to protect a fundamental right
derived from the Constitution or a federal statute, and the [government] fails to adhere to it, the
challenged deportation proceeding is invalid.” Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir. 1993).
This is true “‘even where the internal procedures are possibly more rigorous than otherwise would
be required’” by the Constitution or statute. Montilla v. I.N.S., 926 F.2d 162, 167 (2d Cir. 1991)
(citing Morton v. Ruiz, 415 U.S. 199, 235 (1974)).
Separately, and even if the violation of regulations does not rise to a violation of
fundamental rights, “a regulatory violation or violations so egregious as to shock the conscience
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would call for invalidation” of removal proceedings. Rajah v. Mukasey, 544 F.3d 427, 446 (2d Cir.
2008).
Finally, when immigration authorities violate their own regulations but have neither
violated a fundamental right nor shocked the conscience, termination is still appropriate “upon a
showing of prejudice to the rights sought to be protected by the subject regulation,” Waldron, 17
F.3d at 518, or where the violation prejudices the outcome or overall fairness of removal
proceedings. Rajah 544 F.3d at 447; Montero v. I.N.S., 124 F.3d 381, 386 (2d Cir. 1997). Prejudice
is presumed “when compliance with the regulation is mandated by the Constitution” or “where an
entire procedural framework, designed to insure the fair processing of an action affecting an
individual is created but then not followed by an agency.” Matter of Garcia-Flores, 17 I. & N.
Dec. 325, 329 (BIA 1980).
B. Immigration Officials Violated Several of Their Own Regulations During [client]’s Detention.
1. Custody of Unaccompanied Immigrant Children is Governed by the TVPRA, Code of Federal Regulations, and the Flores Settlement.
Care and treatment of unaccompanied immigrant children in federal custody is dictated by
three sources of law: Section 1232 of the Immigration and Nationality Act, 8 CFR 1236.3, and the
Flores Settlement, “a consent decree that settled all claims regarding the detention conditions”
raised in a constitutional challenge to the conditions of detention of juveniles by immigration
authorities brought by a class of affected juveniles. Reno v. Flores, 507 U.S. 292, 296 (1993). The
Department of Homeland Security (DHS) acknowledges that “[t]he Flores v. Reno Settlement
Agreement governs the policy for the treatment of unaccompanied alien children in federal
custody” and that “[t]he Department of Homeland Security is bound by the Flores v. Reno
Settlement Agreement.” Dep’t of Homeland Sec., Office of Inspector Gen., CBP’s Handling of
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Unaccompanied Alien Children, Sept. 2010, at 1, available at
http://www.oig.dhs.gov/assets/Mgmt/OIG_10-117_Sep10.pdf.
These three sources oblige CBP and ICE to abide by certain minimum standards of conduct
when they detain an unaccompanied immigrant child. Specifically, § 1232(b)(3) of the INA obliges
the government to “transfer the custody of such child [from a non-contiguous country] to the
Secretary of Health and Human Services not later than 72 hours after determining that such child
is an unaccompanied alien child” and to “[a]t a minimum . . . take into account multiple forms of
evidence . . . to determine the age of the unaccompanied alien.” 8 U.S.C. § 1232(b)(3)-(4). The
INA further obliges the government to “ensure that unaccompanied alien children . . . are protected
from . . . persons seeking to victimize or otherwise engage such children in criminal, harmful, or
exploitative activity . . . .” 8 U.S.C. § 1232(c)(1).
In addition, the relevant provision of the Code of Federal Regulations (CFR) mandates that
“[a] juvenile who does not reside in Mexico or Canada who is apprehended shall be provided
access to a telephone and must in fact communicate either with a parent, adult relative, friend, or
with an organization found on the free legal services list prior to presentation of the voluntary
departure form.” 8 CFR 1236.3(g). Section 1236.3(f) of the CFR mandates that “[w]hen a juvenile
alien is apprehended, he or she must be given a Form I-770, Notice of Rights and Disposition.”
Finally, the Flores Settlement requires appropriate temperature control and ventilation;
supervision to ensure safety; and, in the government’s own words, placement in “the least
restrictive setting appropriate to the minor’s age and special needs” and “facilities that are safe and
sanitary and consistent with [DHS’s] concern for the particular vulnerability of minors.” Stipulated
Settlement Agreement at 7-8, Flores v. Meese, 681 F.Supp. 665 (C.D. Cal. 1996), available at
http://www.clearinghouse.net/chDocs/public/IM-CA-0002-0005.pdf. (Flores Settlement).
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2. Immigration Officials Violated [client]’s Rights Under the INA, CFR, and Flores Settlement.
As described below, over the course of [client]’s eight-day detention, for part of which he
was shackled and locked in solitary confinement, immigration officials violated numerous
regulations and laws that govern the custody of unaccompanied immigrant children.
i. Violations of the INA
CBP and ICE violated 8 U.S.C. § 1232(b)(3) of the INA by failing to transfer custody of
[client] to the Secretary of Health and Human Services within 72 hours of his apprehension.
Together, CBP and ICE held [client] for eight days after his apprehension, a full five days more
than allowed by statute. [Client] Affidavit at ¶ 31. Although § (b)(3) allows for an exception to the
72-hour rule in the case of exceptional circumstances, no such circumstances existed at the time
of [client]’s apprehension. [Client] was arrested on April 24, 2013. [Client] Affidavit at ¶ 10. That
date is nearly fifteen months prior to the government’s declaration of a humanitarian crisis due to
an influx of unaccompanied minors. Presidential Memorandum, “Response to the Influx of
Unaccompanied Alien Children Across the Southwest Border,” June 2, 2014, available at
http://www.whitehouse.gov/the-press-office/2014/06/02/presidential-memorandum-response-
influx-unaccompanied-alien-children-acr (declaring the increase in unaccompanied child minors
an “urgent humanitarian situation). Accordingly, [client] should have been transferred within 72
hours.
CBP also violated § 1232 (b)(4) of the INA by refusing to take into account multiple forms
of evidence of [client]’s age. The Customs and Border Patrol agent who initially processed [client]
used nothing to determine [client]’s age beyond his subjective—and, in this case, highly
unreasonable—judgment. Exhibit A at ¶¶ 12-13. That determination was unreasonable in light of
several forms of contradictory proof of [client]’s minority age. First, [client] weighs approximately
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115 pounds and stands a mere 5’5” tall. A reasonable officer would have noted his small stature
and appropriately followed up to confirm [client]’s age. Second, [client] repeatedly insisted to the
officers that he was under the age of 18. Agency policy itself directs CBP officers to afford the
INA’s protections to every arrestee “who appear[s], [is] known, or claim[s] to be under the age of
eighteen” and unaccompanied. Exhibit B, p. 2. Despite [client]’s suggestion that immigration
officials call his family to confirm his age, and the presumptive availability of medical care at the
facility where [client] was detained that could have produced physical evidence of his age, the
agent took no evidence of [client]’s age into account. Exhibit A at ¶ 13.
CBP and ICE also violated 8 U.S.C. § 1262(c)(1) by failing to “ensure that unaccompanied
alien children . . . are protected from . . . persons seeking to victimize or otherwise engage such
children in criminal, harmful, or exploitative activity . . . .” By placing [client] alone in cells full
of adult immigrants for days on end, the immigration officials who oversaw his detention did not
adequately protect him from the risk of victimization that is widely known to affect children placed
in adult detention facilities. See Section I(C)(2), infra (describing children’s vulnerability to sexual
and other violence when detained with adults)
ii. Violations of 8 CFR 1236.3
CBP violated 8 CFR 1236.3(g) by failing to provide access to a phone before offering
[client], a minor from Honduras, voluntary departure. [Client] made repeated requests for a
telephone call, both because he wanted to prove to immigration officials that he was of minority
age and because he was scared and wanted to contact an adult family member. Exhibit A at ¶¶ 13;
32. Despite [client]’s request for a telephone call—a request which, under the procedures mandated
by regulation, he did not have make because the call should be offered to him regardless—none
was given to him for many days. Id. at ¶¶ 13; 27. In fact, [client] was not provided telephone access
until he had been detained with adults for over a week, taken a flight while shackled, and was
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awaiting deportation in an adult detention facility in New Jersey. Id. at ¶ 20; 22; 27; 31. He had
been offered—and signed, out of fear and confusion—for voluntary departure several days prior
to immigration agents finally calling his family. Id. at ¶ 27. Accordingly, CBP violated 8 CFR
1236.3(g).
CBP also violated § 1236.3(f) by failing to provide [client] with an I-770 Notice of Rights
and Responsibilities. [Client] was not given an I-770 until he had spent eight days in detention.
Exhibit B (dated eight days after [client]’s arrest). The subsequent provision of the I-770 to [client]
when he was in adult detention in New Jersey does not cure CBP’s original violation of § 1236.3(f).
By the time [client] received his I-770, he had already been processed for deportation via voluntary
departure, chained and left in a room with unsupervised adults, and then placed in solitary
confinement without being told why or when he would leave. This egregious behavior toward a
vulnerable child could have been prevented had [client] been provided the I-770 “when
apprehended,” as mandated by regulation. Accordingly, CBP violated 8 CFR 1236.3(f).
iii. Violations of the Flores Settlement
CBP and ICE violated the Flores Settlement by refusing to provide appropriate temperature
control and ventilation. During [client]’s detention by CBP, he was exposed to cold temperatures
for prolonged periods. In this way, his treatment was not unlike that of prisoners held in
Guantánamo Bay, treatment widely believed to amount to torture. The New York Times recently
described the conditions under which one prisoner at Guantánamo was interrogated: “Chained,
barefoot and wearing only a thin uniform in an interrogation room chilled to 49 degrees, [the
prisoner] found himself on the receiving end of a barrage of questions.” Helene Cooper, Family
Seeks Release of a Guantánamo Detainee Turned Author, N.Y. TIMES, Jan. 20, 2015, available at
http://www.nytimes.com/2015/01/21/us/family-seeks-release-of-a-guantanamo-detainee-turned-
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author.html. Similarly, [client] describes the cells in which he was initially held as freezing, using
the Spanish word for icebox, “hielera.” See Exhibit A at ¶ 14.
CBP and ICE also violated the Flores Settlement by refusing to provide proper supervision
to ensure safety. Rather than separate [client] with other children his age, the government left him
unsupervised with adults during his detention in both Texas and New Jersey. Id. at ¶ 14; 24. Alone
and in chains with a room full of adults, [client] was at great risk for victimization.
Finally, CBP and ICE violated the Flores Settlement by failing to place [client] in “the
least restrictive setting appropriate to the minor’s age and special needs” and to provide him with
“facilities that are safe and sanitary and consistent with [DHS’s] concern for the particular
vulnerability of minors.” Instead, the government placed [client] in arguably the most restrictive
setting possible: in chains and in solitary confinement. Exhibit A at ¶¶ 20-22; 28-29. The
government’s conduct is patently inconsistent with DHS’s declared concern for the particular
vulnerability of minors. Accordingly, the government violated the Flores Settlement.
C. The Government’s Treatment of [Client] Violated His Fundamental Rights and Shocks the Conscience.
When the government violated its own regulations while [client] was in its custody, it
engaged in conduct that was both a violation of [client]’s fundamental rights and a shock to the
conscience. Accordingly, [client]’s removal proceedings should be terminated.
1. The Government’s Treatment of [Client] Violated his Fundamental Rights.
By violating both their own regulations and Congress’s mandated procedures for the
initiation of removal proceedings against unaccompanied children, immigration officials violated
[client]’s fundamental right to due process. This right is guaranteed by both the Fifth Amendment
to the Constitution and by federal statute.
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“It is well established that the Fifth Amendment entitles aliens to due process of law in
[removal] proceedings[.]” Reno v. Flores, 507 U.S. 292, 306 (1993). The provisions of the INA
and the CFR at issue here are entirely about the launch of the removal process for an
unaccompanied child immigrant detained at the border. Form I-770—reflecting the federal
regulations and statutory language—lays out the initial steps that must be taken before removal
proceedings may be fully opened against a child. Thus, the framework at issue here is inextricably
and intricately linked to removal proceedings, and therefore due process.
Moreover, the procedural safeguards that these provisions enacted to ensure a child
immigrant received due process—notice and the opportunity to appear before a judge, with counsel
whenever possible—are the key elements of due process that the Constitution mandates. Pierre v.
Holder, 588 F.3d 767, 777 (2d Cir. 2009) (observing that notice and an opportunity to be heard
are at the “core” of due process in immigration proceedings). To wit, Form I-770 is characterized
as a “Notice,” both on its face and in the CFR. Exhibit B; 8 CFR 1236.3(f).
The U.S. Supreme Court has previously recognized the inappropriateness of deportation
proceedings where an immigrant’s due process rights have been violated. Bridges v. Wilson, 326
U.S. 135, 152-53 (1945) (holding that deportation is inappropriate where immigration officials
violated rules affording the immigrant due process intended to” provide safeguards against
essentially unfair procedures”). A parallel conclusion should be drawn in this case: deportation
proceedings against [client] are inappropriate because his due process rights, guaranteed under the
Fifth Amendment, were violated.
[Client]’s statutory right to due process was similarly violated. The U.S. Supreme Court
has made clear that the process that Congress sets out in a federal statute is sufficient to satisfy an
immigrant’s right to due process under the law. In Knauff v. Shaughnessy, the Court commented,
15
“Whatever the procedure authorized by Congress is, it is due process as far as an alien . . . is
concerned.” 338 U.S. 537, 544 (1950). In this case, the procedure authorized by Congress is that
set out in the INA, discussed in detail above. Under the rule of Knauff, such procedures constitute
the due process to which [client] was entitled, since they were authorized by the Congress. Since
the statute was violated, [client]’s due process rights were also violated. Thus, under both the INA
and the Constitution, [client] had a fundamental right to due process. That right was violated and
accordingly this Court should terminate the proceedings against [client].
2. The Government’s Treatment of [client] Shocks the Conscience.
In addition to violating [client]’s fundamental right to due process, the government treated
him in a way that shocks the conscience and merits the termination of these proceedings.
According to the Flores Settlement minors in federal immigration custody must be treated
with “dignity, respect and special concern for their particular vulnerability as minors.” Flores
Settlement at ¶ 12.A. Flores remains in effect today, and, indeed, is the root of the entire
framework in place for minors caught up in the immigration detention system. Treatment by
immigration authorities that was degrading, exposed [client] to unreasonable and substantial risk
of trauma and victimization, and exacerbated, instead of evincing concern for, his particular
vulnerabilities as a child was at total odds with the twin principles established by Flores and shocks
the conscience. This Court accordingly should terminate these proceedings.
i. [Client] Was Treated Disrespectfully and His Dignity Was Violated By Agents’ Shocking Conduct.
In the Flores Settlement, the federal government committed itself to providing for the
safety and well-being of minors. In the government’s own words, “Every effort must be taken to
ensure that the safety and well-being of the minors detained in these facilities are satisfactorily
provided for by staff.” Flores Settlement at ¶ 12.A. As discussed supra, section (B)(2)(iii), the
16
government’s treatment of [client] was shockingly at odds with its stated commitment to child
welfare.
Rather than treating [client] as a particularly vulnerable child in need of refuge, the
government placed him in a numbingly cold cell, surrounded by adults. Exhibit A at ¶ 14.
Placement in a freezing cell is an infamous interrogation technique used at Guantanamo Bay. It
shocks the conscience to subject a small refugee child at the end of an arduous journey to the same
conditions.
Moreover, [client] was not afforded any privacy in which to shower and use the toilet while
locked in a crowded cell of adult men. Id at ¶ 19. CBP agents intimated that [client] was a liar,
ignored his requests for assistance, and kept him in the dark about what was happening. Id. at ¶¶
13; 14; 21; 28. The horrific, undignified, and disrespectful treatment [client] received at the hands
of immigration authorities shocks the conscience and should provide this Court with ample reason
to terminate these proceedings.
ii. Agents Shockingly Disregarded The Particular Vulnerability of the Minor.
The indiscriminate disregard by agents in this case for what the Flores Settlement calls
“the particular vulnerability of the minor,” also shocks the conscience.
1. Agents Subjected the Vulnerable [client] to the Adverse Impact of Solitary Confinement.
Flores calls for the detention of minors in immigration custody in the least restrictive
setting possible. Surely, solitary confinement within an adult detention facility, which [client]
experienced for more than a day, does not constitute a least restrictive setting. Exhibit A at ¶¶ 28-
29. The negative impact of solitary confinement on adolescent children is widely known in the
scientific and policy communities. Indeed, because of solitary’s proven lasting damaging effects,
New York City recently banned its use on prisoners under the age of 21: “A large body of scientific
17
research indicates that solitary confinement is particularly damaging to adolescents and young
adults because their brains are still developing. Prolonged isolation in solitary cells can worsen
mental illness and in some cases cause it, studies have shown.” Michael Winerip and Michael
Schwirtz, Rikers to Ban Isolation for Inmates 21 and Younger, N.Y. TIMES, Jan. 13, 2015,
available at http://www.nytimes.com/2015/01/14/nyregion/new-york-city-to-end-solitary-
confinement-for-inmates-21-and-under-at-rikers.html.
Human Rights Watch, reporting on the use of solitary confinement on children across the
United States, found that experts had reached a similar conclusion about the damage done by this
sort of confinement on teenagers:
Experts assert that young people are psychologically unable to handle solitary confinement with the resilience of an adult. And, because they are still developing, traumatic experiences like solitary confinement may have a profound effect on their chance to rehabilitate and grow. Solitary confinement can exacerbate, or make more likely, short and long-term mental health problems. The most common deprivation that accompanies solitary confinement, denial of physical exercise, is physically harmful to adolescents’ health and well-being.
HUMAN RIGHTS WATCH/ACLU, GROWING UP LOCKED DOWN: YOUTH IN SOLITARY CONFINEMENT
IN JAILS AND PRISONS ACROSS THE UNITED STATES 2 (2012).
In this case, [client] experienced feelings of desperation while he was in a Kafka-esque
solitary confinement environment, being transferred from solitary cell to solitary cell, including
one that was hidden from the rest of the facility and one that was excessively small. Exhibit A at
¶ 28. He felt isolated and punished. Id. After some time in solitary, he was reduced to tears. He
was deprived of physical exercise while locked in a cell that was too small to move around in
comfortably. Id. [client] is still affected by what happened and woke up in the middle of the night
when he was first released. Id. at 31. Agents’ disregard for regulations designed to prevent
[client]’s placement in such traumatic and damaging settings is shocking.
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2. Agents Ignored [client]’s Vulnerabilities to Victimization in Adult Detention.
The Flores agreement requires immigration authorities to segregate detained child
immigrants from adults with whom the child is not related. Flores Settlement at ¶ 12.A. This
procedure shields child immigrants from the risk of victimization by adult detainees, a particular
vulnerability they have as children. The deliberate disregard of this particular vulnerability shocks
the conscience.
Studies from the criminal justice system in this case are instructive. As the U.S. Congress
has found, children incarcerated in adult detention facilities are five times more likely to be
sexually assaulted in adult facilities than in juvenile ones. 42 U.S.C. § 15601 (2003) (congressional
findings in support of Prison Rape Elimination Act). Further, “Studies show that youth held in
adult facilities are 36 times more likely to commit suicide . . . .” National Juvenile Justice Network,
Keep Youth Out of Adult Courts, Jails, and Prisons, available at http://www.njjn.org/about-
us/keep-youth-out-of-adult-prisons. [Client], a mere 5’5”, was confined among large groups of
adult men for over a week. Exhibit A at ¶¶ 31; 19. There was no privacy, and not enough space to
sleep. Id. at ¶ 19. While there is no evidence that [client] was in fact victimized in this setting,
agents willfully placed him at a substantial risk of victimization by ignoring his claim that he was
a minor and locking him in with adults. This Court should be shocked by such disregard for his
vulnerabilities as a child to this sort of trauma, and terminate the proceedings against him.
3. Agents Ignored [client]’s General Vulnerability to Trauma as an Adolescent.
An objective shared by the Flores agreement and the INA is the placement of minors in
detained settings that impart feelings of safety and security to child immigrants—in other words,
conditions that generally minimize the risk of the traumatization of the minor throughout his or
her detention.
19
Unfortunately, in this case, [client] was traumatized by many of the actions of immigration
officials. In addition to exposing him to the trauma of solitary confinement, [client] underwent the
traumatic experience of full body shackles for an extended period of time. Exhibit A at ¶¶ 20-21.
[Client] was detained in exceedingly cold temperatures in cells with insufficient beds for the
number of people detained therein—in some of the cells where he was detained, there were no
beds at all, and he was forced to attempt to sleep on a cold cement floor. Id. at ¶¶ 14-15. [Client]
spent eight days confined with unrelated adults, discussed in more detail below.
Research amply demonstrates the particular vulnerabilities of children to trauma.
Researchers at the University of Florida summed up the literature in 2007:
Adolescents are especially vulnerable to the effects of trauma, and trauma can have a significant impact on their development. . . . [T]rauma experienced by adolescents is particularly important because significant physical and emotional growth is occurring at this age. The stressors that an adolescent encounters will help to shape his or her growth and perspective, and can have long-lasting impacts. For example, adolescence is a time of increased brain development. There is evidence that the stress associated with traumatic events can change major structural components of the central nervous system and the neuroendocrine system. Severe traumatic stress affects the chemicals in the brain, and can change brain structures, leaving a lasting effect.
Ashley Eckes and Heidi Liss Radunovich, “Trauma and Adolescents,” Document FCS2280, Dep’t
of Family Youth and Community Sciences Department, Florida Cooperative Extension Service,
Institute of Food and Agricultural Sciences, University of Florida (Oct. 2007),
http://edis.ifas.ufl.edu/pdffiles/FY/FY100400.pdf (internal citations omitted). Policies and
regulations intended to minimize the effects of trauma while in immigration detention were
shunted to the side in this case, exposing [client] to significant and prolonged traumatic conditions
as his first interaction with the United States, a place where he had come to seek refuge from a
traumatic childhood. Nothing could be more shocking.
20
Because immigration agency action was so flagrant in this case, [client] respectfully asks
this Court to terminate the proceedings against him.
D. The Government’s Treatment of [Client] Prejudiced Him.
Should this Court not find that [client]’s detention violated his fundamental right to due
process or shocks the conscience, it should nonetheless terminate the proceedings against [client]
because they prejudiced him.
1. The Government Violated Procedural Frameworks, so Prejudice is Presumed.
Because the government violated [client]’s fundamental rights derived from both the
Constitution and federal statute, this Court should assume that he was prejudiced and terminate
removal proceedings. Garcia-Flores, 17 I. & N. Dec. at 329. In the alternative, prejudice should
also be presumed because the government’s treatment of [client] constitutes a violation of “an
entire procedural framework, designed to insure the fair processing of an action affecting an
individual.” Id. In their treatment of [client], immigration agency officials evinced a wholesale
disregard for the system of safeguards set out by statute, regulation and the Flores settlement.
More than violating an individual regulation, or even a series of regulations stemming from one
source, officials violated entire frameworks for treatment of detained immigrant child immigrants
that arise out of three different sources of law. They provided [client] with none of the protections
or process that the immigration system is supposed to offer a child, instead routing him directly
into the adult detention system, exposing him to trauma and risk, and depriving him of due process.
This Court should therefore terminate these proceedings.
As noted above, the INA and CFR set out a robust framework for ensuring that
unaccompanied child immigrants are safe and protected from harm in immigration detention. That
framework establishes a comprehensive procedure for any person who makes a reasonable claim
to be less than 18 years old. Someone who makes such a claim should promptly receive a rights
21
form, have access to a telephone, and be the beneficiary of diligent efforts by immigration officials
to make telephonic contact with an adult of the child’s choosing. Only when these procedural
safeguards have been satisfied may a child immigrant sign for voluntary departure. In [client]’s
case, the entire framework was violated when [client]’s claim that he was a minor was
unreasonably rejected, his request for a phone call was ignored, and he was permitted to sign for
voluntary departure without making telephone contact with anyone.
Additionally, [client]’s treatment violates the framework laid out in the stipulated
agreement reached in Flores v. Reno. That suit created the modern, comprehensive framework for
juveniles detained in U.S. immigration custody still in place today. Flores makes clear that the
agreement was intended to create a national, comprehensive framework: “This agreement sets out
nationwide policy for the detention, release, and treatment of minors in the custody of INS . . . .”
Flores Settlement at ¶ 9 (emphasis supplied). Flores created a series of substantive mandates for
the treatment of children in immigration detention. As an example, Flores commands, “Following
arrest, the INS shall hold minors in facilities that are safe and sanitary and that are consistent with
the INS’s concern for the particular vulnerability of minors.” Flores Settlement at ¶ 12.A.
Similarly, Flores requires immigration agencies to “segregate unaccompanied minors from
unrelated adults.” Id.
As with the INA and CFR, officials followed none of the provisions of the Flores
agreement in [client]’s case. [Client] was not segregated from unrelated adults, but instead held in
unsafe and unsanitary conditions. Finally, the immigration agency evinced no concern whatsoever
for his particular vulnerabilities as a child. Because the government violated an entire procedural
framework, this Court should therefore presume that he was prejudiced and terminate the
proceedings against him.
22
2. The Government’s Conduct Actually Prejudiced [client].
Termination is appropriate “upon a showing of prejudice to the rights sought to be
protected by the subject regulation,” Waldron, 17 F.3d at 518, or where the violation prejudices
the outcome or overall fairness of removal proceedings. Rajah 544 F.3d at 447; Montero v. I.N.S.,
124 F.3d 381, 386 (2d Cir. 1997). The government’s conduct prejudiced the rights sought to be
protected by the regulations it broke and prejudiced the overall fairness of [client]’s removal
proceedings.
First, [client]’s due process right, which the regulation intended to protect, was prejudiced
by immigration agents’ actions. As [client]’s affidavit states, had he been provided with the
procedural protections afforded to child immigrants when he was initially detained, he would have
taken advantage of them. Exhibit A at ¶ 32. [client]’s very presence in the United States today is
testament to this—when [client] was ultimately afforded the protections that child migrants are
due, after eight days of detention in adult facilities culminating in his confinement in a solitary cell
for more than 24 hours, he took advantage of them. He exercised his right to a telephone call, was
released to a sponsoring adult, and is now represented by counsel. Because these rights were not
initially protected, however, they were prejudiced.
Second, the serious harms that the regulations intend to prevent child immigrants from
experiencing—exposure to additional trauma through prolonged detention, vulnerability to the
adverse effects of solitary confinement, and risk of victimization in adult detention facilities—
were all visited upon [client] in this case. This rendered these proceedings unfair. Instead of
providing [client] safety, security, and adequate process under the law as required, agents exposed
him to risk and trauma at the very beginning of his immigration proceedings. To then expect a
traumatized child to endure ongoing removal proceedings is unfair. This Court should rectify that
by terminating them.
23
Because [client] can demonstrate both actual and presumed prejudice in this case, this
Court should terminate the proceedings against him.
II. TERMINATION OF [CLIENT]’S REMOVAL PROCEEDINGS STRIKES AN APPROPRIATE BALANCE BETWEEN PROTECTING THE RIGHTS OF IMMIGRANT CHILDREN, DETERRING GOVERNMENT MISCONDUCT, AND ENABLING REASONABLY EFFICIENT LAW ENFORCEMENT.
In deciding a motion to terminate for violation of agency regulations, courts must “strike a
balance between protecting the rights of aliens, deterring government misconduct, and enabling
reasonably efficient law enforcement.” Rajah v. Mukasey, 544 F.3d 427, 447. To strike this
balance, courts should bear in mind that termination for lack of “agency compliance with its own
rules would actively encourage such compliance. Careless observance by an agency of its own
administrative processes weakens its effectiveness in the eyes of the public because it exposes the
possibility of favoritism and of inconsistent application of the law.” Montilla v. I.N.S., 926 F.2d
162, 169 (2d Cir. 1991).
Termination in this instance strikes an appropriate balance. [Client]’s eight-day ordeal in
adult immigration detention could have been avoided with a simple telephone call to his family.
Instead, [client] was placed in shackles in cells of adults and subjected to solitary confinement.
Termination of [client]’s proceeding instructs CBP and ICE that agency heads meant what they
wrote when they committed to treat unaccompanied immigrant children with “dignity, respect and
special concern for their particular vulnerability as minors.” Flores Settlement at ¶ 12.A.
Moreover, it deters rogue immigration officials from flouting Congress’s mandated procedures for
custody of unaccompanied immigrant youth.
Finally, the burden to efficient law enforcement of complying with the law on custody of
unaccompanied minors is not only negligible, but indeed, cost-saving. A five-minute telephone
call to [client]’s family at the beginning of detention would have saved CBP and ICE hours of time
24
and thousands of dollars in expense in confining [client] in cells with shackles, preparing
immigration paperwork meant for adults, and transferring him at government expense for
deportation processing in New Jersey.
Because termination would protect the rights of other immigrant children, deter future
misconduct on the part of immigration officials, and encourage savings of time and cost for law
enforcement, this Court should grant [client]’s motion.
Conclusion
Under both Second Circuit and Board of Immigration Appeals precedent, [client] has
demonstrated that his proceedings should be terminated. Immigration agents violated the
regulations of their agencies. Those regulations protected his fundamental right to due process
guaranteed by the U.S. Constitution and by federal statute. The conduct that gave rise to their
violations shocks the conscience. Additionally, [client] has demonstrated both presumed and actual
prejudice as a result of immigration agents’ actions. Accordingly, he asks this Court to find that
he has demonstrated that under Montero, Rajah, and Garcia-Flores, ongoing removal proceedings
against him are invalid because of those violations. As a result of that finding, he also respectfully
asks this Court to terminate the deportation proceedings against him, and grant any other relief that
the Court finds appropriate.
Respectfully submitted, ______________________ Elizabeth Jordan, Esq. The Door’s Legal Services Center 121 Avenue of the Americas New York, NY 10013 [email protected]
______________________ Anthony Enriquez, Esq.
25
The Door’s Legal Services Center 121 Avenue of the Americas New York, NY 10013 [email protected] Counsel for [client]
26
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT NEW YORK, NEW YORK
--------------------------------------------------X In the Matter of [CLIENT] [A number]
In removal proceedings. --------------------------------------------------X
EXHIBIT LIST IN SUPPORT OF MOTION TO TERMINATE REMOVAL PROCEEDINGS PURSUANT TO INVALID AGENCY ACTION
A. Affidavit of [client] B. Form I-770, dated May 1, 2013 C. Notice to Appear, dated May 1, 2013
36
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT NEW YORK, NEW YORK
--------------------------------------------------X In the Matter of [CLIENT] [A number]
In removal proceedings. --------------------------------------------------X
ORDER OF THE IMMIGRATION JUDGE Upon consideration of [client]’s Motion to Terminate Removal Proceedings Pursuant to Invalid Agency Action, it is HEREBY ORDERED that the motion be GRANTED because: □ DHS does not oppose the motion. □ A response to the motion has not been filed with the court. □ Good cause has been established for the motion. □ The court agrees with the reasons stated in the opposition to the motion. □ The motion is untimely per __________________________________. □ Other: ________________ _______________________ Date Judge X
Immigration Judge
Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS ________________ _______________________ Date Court Staff
37
[CLIENT] [A number]
PROOF OF SERVICE
I, _____________________, hereby certify that on January 29, 2015, a copy of the foregoing MOTION TO TERMINATE REMOVAL PROCEEDINGS was served via hand delivery to the Department of Homeland Security, Office of Chief Counsel at the following address:
Office of Chief Counsel 26 Federal Plaza, Room 1130 New York, New York 10278
1/29/15 ____________________________ Date
